[Federal Register: June 15, 2006 (Volume 71, Number 115)]
[Notices]
[Page 34590-34591]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jn06-20]
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ANTITRUST MODERNIZATION COMMISSION
Request for Public Comment
AGENCY: Antitrust Modernization Commission.
ACTION: Request for public comment.
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SUMMARY: The Antitrust Modernization Commission requests comments from
the public regarding specific questions relating to the issues selected
for Commission study.
DATES: Comments are due by July 10, 2006.
ADDRESSES: By electronic mail: comments@amc.gov. By mail: Antitrust
Modernization Commission, Attn: Public Comments, 1120 G Street, NW.,
Suite 810, Washington, DC 20005.
FOR FURTHER INFORMATION CONTACT: Andrew J. Heimert, Executive Director
& General Counsel, Antitrust Modernization Commission. Telephone: (202)
233-0701; e-mail: info@amc.gov. Internet: http://www.amc.gov.
SUPPLEMENTARY INFORMATION: The Antitrust Modernization Commission was
established to ``examine whether the need exists to modernize the
antitrust laws and to identify and study related issues.'' Antitrust
Modernization Commission Act of 2002, Public Law 107-273, Sec. 11053,
116 Stat. 1856. In conducting its review of the antitrust laws, the
Commission is required to ``solicit the views of all parties concerned
with the operation of the antitrust laws.'' Id. By this request for
comments, the Commission seeks to provide a full opportunity for
interested members of the public to provide input regarding certain
issues selected for Commission study. From time to time, the Commission
may issue additional requests for comment on issues selected for study.
Comments should be submitted in written form. Comments should
identify the topic to which it relates. Comments need not address every
question within the topic. Comments exceeding 1500 words should include
a brief (less than 250 word) summary. Commenters may submit additional
background materials (such as articles, data, or other information)
relating to the topic by separate attachment.
Comments should identify the person or organization submitting the
comments. If comments are submitted by an organization, the submission
should identify a contact person within the organization. Comments
should include the following contact information for the submitter: an
address, telephone number, and email address (if available). Comments
submitted to the Commission will be made available to the public in
accordance with Federal laws.
Comments may be submitted either in hard copy or electronic form.
Electronic submissions may be sent by electronic mail to
comments@amc.gov. Comments submitted in hard copy should be delivered
to the address specified above, and should enclose, if possible, a CD-
ROM or a 3\1/2\ inch computer diskette containing an electronic copy of
the comment. The Commission prefers to receive electronic documents
(whether by email or on CD-ROM/diskette) in portable document format
(.pdf), but also will accept comments in Microsoft Word format.
The AMC has issued this request for comments pursuant to its
authorizing statute and the Federal Advisory Committee Act. Antitrust
Modernization Commission Act of 2002, Public Law 107-273, Sec. 11053,
116 Stat. 1758, 1856; Federal Advisory Committee Act, 5 U.S.C. App.,
10(a)(3).
Topic for Comment
The Commission requests comment on the following topic.
Civil Remedies
1. The Commission is evaluating a proposal to reform indirect
purchaser litigation. The potential reform would consist of three
principal components: (1) Legislative overruling of Illinois Brick Co.
v. Illinois, 431 U.S. 720 (1977), so that indirect purchaser claims
could be brought under federal antitrust law, and Hanover Shoe, Inc. v.
United Shoe Machinery, 392 U.S. 481 (1968), so as to allow assertion of
the pass-on defense; (2) Statutory provisions either (a) to allow
removal of all state indirect purchaser actions to federal court to the
full extent permitted under Article III, or (b) to preempt state
indirect purchaser laws; and (3) Statutory provisions to allow the
consolidation of all related direct and indirect purchaser actions in a
single Federal district court for pre-trial and trial proceedings.
Should the Commission recommend such reform to Congress? Should the
proposal be modified in any respects? In responding, please also
comment on the following:
a. Is a provision that would allow removal of state indirect
purchaser actions necessary or desirable, in light of the generally
applicable removal provisions contained in the Class Action Fairness
Act?
b. Is preemption of state indirect purchaser actions necessary or
desirable if state indirect purchaser actions may be removed to Federal
court?
c. Should the Commission also recommend to Congress that courts be
required to use structured proceedings to resolve purchaser claims?
Those proceedings would resolve liability in the one phase, determine
total damages in another, and allocate damages among direct and
indirect claimants in a separate phase. Would structured proceedings
work better if courts could combine certain phases of the proceedings,
especially liability and total damages, in appropriate cases in the
exercise of their discretion?
d. To what extent would the legislative overruling of Hanover Shoe
create new challenges in the process of certifying appropriate classes
of claimants? Can any such challenges be resolved fully through the
structured approach suggested in (c) above?
2. The Commission is evaluating a proposal to alter the
circumstances in which treble damages are awarded to successful
antitrust plaintiffs. The proposal would provide as follows:
The court, in its discretion, may limit the award to single damages
based on consideration of the following factors:
a. Whether the violation was per se or rule of reason;
b. whether the violation involved single-firm or multi-firm
conduct;
c. whether the violation was related to an otherwise pro-
competitive joint venture;
d. the state of the development of the law with respect to the
challenged conduct as an antitrust violation;
e. whether the challenged conduct was overt or covert;
f. whether the challenged conduct was criminal;
g. whether there has also been a related government action;
h. whether it is a competitor that is alleging the conduct was
anticompetitive; and,
i. whether the violation was proven by clear and convincing
evidence.
Should the Commission recommend such reform to Congress? Should any
of the factors listed above be removed? Are there any other factors
that should also be included?
3. Should the Commission recommend to Congress that courts in their
discretion be permitted to increase the damages multiplier above three?
For
[[Page 34591]]
example, should courts be able to increase the multiplier above three
where the conduct has significant effects outside the United States for
which damages will not be paid?
4. The Commission is evaluating a proposal to change the current
regime regarding private antitrust actions. The proposal would provide
as follows:
a. In all matters where the government institutes criminal
proceedings and obtains a guilty verdict by plea or trial, all unlawful
gains made by the defendants and precomplaint and prejudgment interest
thereon shall be disgorged in that proceeding, together with such fines
as may be provided by law and a civil penalty of 200% of the amount
disgorged.
i. The disgorged unlawful gains shall be apportioned among those
from whom they were taken directly or indirectly by the criminal court
in a summary proceeding to be concluded within 90 days of the entry of
a final criminal judgment as to all defendants. Classes of direct and
indirect claimants may participate through counsel in that proceeding.
Claims of less than $100 shall be disregarded and the amounts
attributable to such claims paid to the Treasury.
ii. Fines and civil penalties shall accrue solely to the Treasury,
but the court may award compensation from those amounts to any private
party found to have been a material factor in the instigation or
successful conduct of the government's investigation and prosecution or
to its counsel.
b. In the case of defendants acquitted of criminal charges, private
claims may be asserted as otherwise provided by law, but only the
actual amount of unlawful gain may be recovered.
Should the Commission recommend such reform to Congress? Should any
of the particular components be modified?
Dated: June 12, 2006.
By direction of the Antitrust Modernization Commission.
Andrew J. Heimert,
Executive Director & General Counsel, Antitrust Modernization
Commission.
[FR Doc. E6-9363 Filed 6-14-06; 8:45 am]
BILLING CODE 6820-YH-P